Unlawful act cannot create rights

The recent property case of Henley and Another v Cohen illustrated the general point that ‘it is not for the claimants to take advantage of their own wrong’.

When tenants converted the upper part of the building they rented into a flat, in breach of a covenant on the property, and subsequently let the flat on an assured tenancy, the owner of the freehold could not have expected that this would be followed immediately by an application to acquire the freehold reversion of the property.

The tenants had applied for consent to convert the first floor of the premises – the ground floor was used by them as a shop – into a flat. Despite the application being refused, they went ahead and did the work anyway. Two days after letting the flat, they applied to acquire the freehold. The owner of the freehold rejected the application.

The dispute went all the way to the Court of Appeal, where Lord Justice Mummery concluded that the property was not a ‘house, reasonably so called’ and therefore was not eligible to be acquired under the legislation.

That decided the matter. However, the Court also considered the issue of whether or not alterations unlawfully made could justify a claim and ruled that the tenants ‘could not enforce a right acquired by committing a wrong’.

Landlords will be thankful that the Court has adopted a commonsense approach in this case.

If someone you deal with is seeking to ‘bend rules’ in order to gain an advantage at your expense, contact our property litigation team for advice on the appropriate steps to take.

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